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Republic vs. Nolasco
Republic vs. Nolasco
Republic vs. Nolasco
SUPREME COURT
Manila
THIRD DIVISION
FELICIANO, J.:
On 5 August 1988, respondent Gregorio Nolasco filed before the
Regional Trial Court of Antique, Branch 10, a petition for the declaration
Nolasco did not possess a "well-founded belief that the absent spouse
was already dead," 2 and second, Nolasco's attempt to have his marriage
During trial, respondent Nolasco testified that he was a seaman and that
England during one of his ship's port calls. From that chance meeting
onwards, Janet Monica Parker lived with respondent Nolasco on his ship
for six (6) months until they returned to respondent's hometown of San
expressed a desire to return to England even before she had given birth
Jose, Antique, in Catholic rites officiated by Fr. Henry van Tilborg in the
that Janet Monica never got used to the rural way of life in San Jose,
Antique. Alicia Nolasco also said that she had tried to dissuade Janet
Monica from leaving as she had given birth to her son just fifteen days
before, but when she (Alicia) failed to do so, she gave Janet Monica
with his parents in San Jose, Antique. Sometime in January 1983, while
P22,000.00 for her expenses before she left on 22 December 1982 for
him that Janet Monica had given birth to his son. The same letter
informed him that Janet Monica had left Antique. Respondent claimed he
then immediately asked permission to leave his ship to return home. He
Respondent further testified that his efforts to look for her himself
whenever his ship docked in England proved fruitless. He also stated that
all the letters he had sent to his missing spouse at No. 38 Ravena Road,
Allerton, Liverpool, England, the address of the bar where he and Janet
Monica first met, were all returned to him. He also claimed that he
inquired from among friends but they too had no news of Janet Monica.
reappearance. 4
The Republic appealed to the Court of Appeals contending that the trial
because respondent Nolasco had failed to show that there existed a well
him such information even after they were married. He also testified that
The Court of Appeals affirmed the trial court's decision, holding that
sufficient.
When Article 41 is compared with the old provision of the Civil Code,
which it superseded, 7 the following crucial differences emerge. Under Article
41, the time required for the presumption to arise has been shortened to four
death to enable the spouse present to remarry. 8 Also, Article 41 of the Family
Code. 5
Code imposes a stricter standard than the Civil Code: Article 83 of the Civil
Code merely requires either that there be no news that such absentee is still
not Nolasco has a well-founded belief that his wife is already dead."
so by the spouse present, or is presumed dead under Article 390 and 391 of
the Civil Code. 9 The Family Code, upon the other hand, prescribes as "well
The present case was filed before the trial court pursuant to Article 41 of
founded belief" that the absentee is already dead before a petition for
As pointed out by the Solicitor-General, there are four (4) requisites for
Code;
suspicion only that his first wife was dead. He admits that
the
declaration
of
presumptive
death
of
the
absentee. 10
Respondent naturally asserts that he had complied with all these
requirements. 11
the only basis of his suspicion was the fact that she had
been absent. . . . 13
In the case at bar, the Court considers that the investigation allegedly
conducted by respondent in his attempt to ascertain Janet Monica
Parker's whereabouts is too sketchy to form the basis of a reasonable or
well-founded belief that she was already dead. When he arrived in San
Petitioner's argument, upon the other hand, boils down to this: that
respondent failed to prove that he had complied with the third
requirement, i.e., the existence of a "well-founded belief" that the absent
spouse is already dead.
The Court believes that respondent Nolasco failed to conduct a search
for his missing wife with such diligence as to give rise to a "well-founded
belief" that she is dead.
United States v. Biasbas, 12 is instructive as to degree of diligence required
in searching for a missing spouse. In that case, defendant Macario Biasbas
was charged with the crime of bigamy. He set-up the defense of a good faith
belief that his first wife had already died. The Court held that defendant had
not exercised due diligence to ascertain the whereabouts of his first wife,
noting that:
Liverpool and this casts doubt on his supposed efforts to locate his wife in
considering that respondent did not identify those friends in his testimony.
The Court of Appeals ruled that since the prosecutor failed to rebut this
the
and
testimony merely tended to show that the missing spouse had chosen not to
communicate with their common acquaintances, and not that she was dead.
geographical
difference
between
London
return to San Jose, Antique. However, he did not explain the delay of nine
(9) months from January 1983, when he allegedly asked leave from his
is not well taken. There is no analogy between Manila and its neighboring
cities, on one hand, and London and Liverpool, on the other, which, as
pointed out by the Solicitor-General, are around three hundred fifty (350)
kilometers apart. We do not consider that walking into a major city like
respondent failed to explain why he did not even try to get the help of the
police or other authorities in London and Liverpool in his effort to find his
subsequent behavior make it very difficult to regard the claimed belief that
19
Also,
The Court also views respondent's claim that Janet Monica declined to
give any information as to her personal background even after she had
married respondent 17 too convenient an excuse to justify his failure to locate
her. The same can be said of the loss of the alleged letters respondent had
sent to his wife which respondent claims were all returned to him.
Respondent said he had lost these returned letters, under unspecified
circumstances.
by
make. . . . .
21
virtue
of
(Emphasis supplied)
any
contract
they
By the same token, the spouses should not be allowed, by the simple
expedient of agreeing that one of them leave the conjugal abode and
The Court notes that respondent even tried to have his marriage annulled
While the Court understands the need of respondent's young son, Gerry
institution. . . .
Nolasco, for maternal care, still the requirements of the law must prevail.
Since respondent failed to satisfy the clear requirements of the law, his
The law does not view marriage like an ordinary contract. Article 1 of the
The family, being the foundation of the
Marriage
is
a special
contract of permanent
Consequently,
family
life.
It
an inviolable
consequences,
is
the foundation
social
of
the
familyand
governed
by
family
relations
are
law
required by law that his absent wife was already dead that would sustain
(Emphasis supplied)
presumptively dead.
In Arroyo, Jr. v. Court of Appeals, 23 the Court stressed strongly the need to
protect.
1990, affirming the trial court's decision declaring Janet Monica Parker